Notice: After almost 6 years, 2500 postings, and a million visits, f/k/a has stopped publishing new posts (and accepting new Comments) as of March 1, 2009. The content is all still here in our archives, of course, so please browse to find unique and wide-ranging punditry, much of which deals with the foibles of lawyers and the rights of their clients, plus thousands of quality haiku by a couple dozen fine poets. See our About page, to learn about f/k/a‘s history, philosophy, honors, etc., and our Prof. Yabut’s Favorites Page for the closest thing we have to a Greatest Hits List. (We may occasionally, but erratically, add a follow-up blurb to an old posting when a topic is in the news.)

Broken Link Warning: Due to an involuntary webserver change in the Spring of 2009, some of our links to internal f/k/a material no longer work. We regret this inconvenience. However, all of our content still exists, and you should be able to locate the desired post by doing using our SideBar Search box or doing a Google Search of f/k/a [put a space and then your search terms after our URL in the Google search box].

All-Archive: This is the last new post that will appear at this web address. As of March 1, 2009, f/k/a will be in “archival status,” with all of our content (dating back to May 2003) remaining available here as archives.

Clicking Client Rights & Legal Ethics here or in the SideBar will bring you to our portal for legal ethics commentary and resources (including extensive discussion of lawyer fees). See “Our Resources” and “Categories” in the Sidebar for more topics.

Go to the Honored Guest Poet Index for links to the individual archive of each of our two-dozen top-notch haiku poets. We’ve collected annotated links to our haiku-related materials and outside websites at the Haiku Resources Page.

No one was willing to go through 2,472 posts to try to choose f/k/a‘s Greatest Hits, but Prof. Yabut’s Favorites Page makes a good substitute.

As I type right now, there are fewer than 12 minutes until my self-imposed midnight shutdown deadline. So, you’re in luck: There’s no time for a long-winded farewell apologia, nor even an attempt to answer Darren Rowse’s recent question: “If your blog died today, what would it be remembered for?” Sad to say, however, the f/k/a Gang — your Editor and his various alter egos — have apparently learned little since we tried to quit this weblog in October 2003. Our sentiments then ring just as true today. Because we still haven’t learned how to pace ourselves, we’re going cold turkey on intense daily blogging, to free up time and energy for creating a more joyful, satisfying and meaningful journey.

A parting note: It’s been great to be able to opine on subjects as diverse as the Graying of the Bar, the meaning of “goomba,” and the importance of pink flamingos and Wendy Savage, while cultivating my artistic side, and bringing the joys of genuine haiku to a wider audience. Many thanks to all who have made f/k/a their regular stop for one-breath poetry and/or breathless punditry, and to the generous and talented poets who let me share their haiku. If I find a new online project or job, I’ll get the word out to my blawging and haijin friends.

One year ago today, I took this picture at the end of the block where the f/k/a Gang lives. We hope to see a lot more of the Mohawk River from now on.

afterwords: If you’re missing our photography, check out “suns along the Mohawk,” which features my photos from along the Mohawk River and around the Schenectady Stockade.

]]>http://blogs.law.harvard.edu/ethicalesq/2009/02/28/were-all-archive-now/feed/6just getting to know youhttp://blogs.law.harvard.edu/ethicalesq/2009/02/28/just-getting-to-know-you/
http://blogs.law.harvard.edu/ethicalesq/2009/02/28/just-getting-to-know-you/#commentsSun, 01 Mar 2009 04:16:18 +0000http://blogs.law.harvard.edu/ethicalesq/?p=10673We wouldn’t be the f/k/a Gang, if we weren’t frantically scampering to meet a self-imposed deadline on a Saturday night. It’s a good thing we can re-use the same words written the first time we closed down this weblog, in October 2003, with only minor changes:

Doing ethicalEsqf/k/a has been a very rewarding experience, whether the correspondents agreed with me or not. Until I started a web journal, [my f/k/a Gang of alter egos] thought the internet might be used to sustain established friendships and relationships (mostly with email), but couldn’t possibly create new ones of any significant value. Well, I was wrong.

Comments and e-correspondence sparked by this website have put me in touch with some very good [talented and interesting] human beings, who can scarcely be blamed for being lawyers [or haiku poets]. Although they’re a lot busier than I am, I hope to continue to connect with them across cyberspace.

At the end of this posting, I’ve listed (alphabetically fairly randomly) a number of the web-log related folks who have become more than just pixelated names to me, due to the quality and/or quantity of their communications, insights, inspiration, or assistance.

sweet grapes
the conversation passes
between friends

… by Hilary Tann – The Heron’s Nest VIII:1

Far more often than I could have imagined 6 years ago, this weblog has sparked real conversations — the kind that nurture real friendships. Before I list the names of people across the blogisphere who have been the most generous to me and this weblog, I want to share some haiku and senryu about conversations.

The poems are written by poets who I only knew as highly-respected members of the haijin community when I approached them a few years ago (to ask if I could use their poems at f/k/a). But, each has become a good friend, who will surely remain at the center of my emotional/social life for decades to come.

With our midnight deadline looming (and a real farewell post still “in the typewriter”), I want to quickly list the people who have made more than a passing impression on me, through their interactions around this weblog — from lots of “link love” and inspriation at their own blawgs, to thoughtful comments or consistent silent cyber-visits, to direct email communications, occasional phone calls, and even lunch dates in the “real” world. Sincere thanks and best wishes to each of you.

How does one say goodbye to a weblog and its readers after almost six years and 2500 posts? I’m not sure, but happily won’t have to decide until the next and final posting here at f/k/a later today. For now, I put up one last sunset photo from the end of my block, and then sorted through my previously-published haiga (pictures with a linked haiku or senryu), and found some that match my mood(s). My brother, Buffalo lawyer Arthur J. Giacalone took each of the haiga photos in today’s post, except for the first and last one.

]]>http://blogs.law.harvard.edu/ethicalesq/2009/02/28/probably-not-our-last-slippery-slope/feed/0Understanding and Reducing Attorney Feeshttp://blogs.law.harvard.edu/ethicalesq/2009/02/28/understanding-and-reducing-attorney-fees/
http://blogs.law.harvard.edu/ethicalesq/2009/02/28/understanding-and-reducing-attorney-fees/#commentsSat, 28 Feb 2009 09:00:09 +0000http://blogs.law.harvard.edu/ethicalesq/?p=10347 Consumers of legal services won’t find much information online or at their public library to help them keep their costs down when they hire a lawyer. Some websites or firms might hawk their own services or materials as being a great value, or as an option far cheaper than using a lawyer, but almost no one — including bar associations and consumer groups — has compiled general tips on how to make legal services less expensive when you turn from prospective consumer to client. Therefore, when I heard a couple months ago that the legal reform group HALT published a free, online Citizen Legal Guide titled “Understanding Attorney Fees So You Can Keep Legal Costs Down” (November, 2008; 8-pp. pdf. version), I was quite pleased. Unfortunately, once I read it, my reaction to HALT’s Fee Guide was like f/k/a‘s fictional Prof. Yabut: “Yeah, but . . . “.

HALT has been working for over 30 years to achieve “Simple, Affordable, Accountable Justice for All.” f/k/a and our self-help-law sister weblog SHLEP have quoted and linked to HALT, its studies, Report Cards, and guides scores of times, beginning on our very first day of blogging in 2003. To my surprise, however, I was disappointed by HALT’s Understanding Attorney Fees ["UAF"]. It correctly advises consumers that:

“If you find yourself with a legal question, you should explore all of the options available to you and become educated about your legal question. You may actually find that you do not need to hire an attorney. . . . However, if your legal matter is complex, substantial money is at stake, you’re charged with a crime, or you’re simply uncomfortable handling legal matters on your own, you’ll probably need to hire a lawyer.”

However, for those who do need to hire a lawyer, there is simply too much left unsaid in Understanding Attorney Fees about how to keep your legal fees down. The HALT Guide does note that “As a legal consumer, your best defense against paying more than you should is to educate yourself about legal fees before signing on the dotted line.” And, it promises to explain “the most common billing arrangements used by lawyers, some new billing arrangements lawyers are using and specific ways you can lower your legal costs.”

Offers very little help for controlling or lowering fees that are based on an hourly rate for the lawyer’s time — not when the client is entering into an hourly billing agreement, while the services are being provided, nor when presented with a periodic or final bill.

Takes a real dive on contingency fees, completely ignoring HALT’s own position on such fees from a decade ago, as presented in its Injured Consumer’s Legal Bill of Rights (The Legal Reformer, December 1997; issue no longer online). At that time, HALT insisted that p/i lawyers should be charging clients a lower percentage in less-risky cases, rather than using the same standard contingency fee for virtually all clients (i.e, one third or 40%). Lawyers were also required to provide the client with key information and estimates relating to risk prior to entering a fee agreement, with the information included in the signed agreement. Frankly, the contingency fee section in the UAF Guide sounds like it was ghost-written by the plaintiff’s personal injury bar. It doesn’t even mention the word “negotiate.”

Seems to offer a blanket endorsement of “alternative” billing methods, with very little help on how to shop for such fees, and no warning that some lawyers offering alternative fee arrangements in fact intend to extract higher fees than possible when billing by the hour (e.g., so-called Value Pricing).

. . We hope consumers will read HALT’s “Understanding Attorney Fees,” but we believe the HALT staff has left too much out of its Guide. There’s no way the f/k/a Gang can create a comprehensive new draft or supplement to HALT’s publication (especially since we are moth-balling this site tomorrow). We will, however, summarize portions of HALT’s UAF Guide, suggest some tips for keeping fees down, and point to a few other helpful sources.

Consumers shopping for legal services need to remember that every kind of pricing arrangement can be exploited or misused to result in excessive fees or inadequate services. For example, hourly billing might result in a lawyer doing too much, but fixed fees can lead to lawyers doing too little, and contingency fees can make you pay far more than is warranted by the risk the lawyer is taking of not being paid or by the amount of work that will be required of the lawyer. See, e.g., our posts “other thoughtful voices on the lawyer billing debate;” and “the reality of alternate billing.” Clients need to insist on more information and lawyers need to act in ways that create trust and give full value.

First, two quick points:

Unbundling can Save You a Bundle: With “unbundling,” the lawyer and client agree that the lawyer will only perform specific, discrete tasks. If you think you’re willing and able to play a large role in your own legal affairs, but know you want or need a lawyer to help perform “discrete tasks” and serve as advisor and coach, look into Unbundling. (see our prior post; and this posting from SHLEP for an introduction); the excerpts from M. Sue Talia‘s book Unbundling Your Divorce can help you determine if they are good candidate. Find State unbundling rules here.

In “Understanding Attorney Fees,” HALT reminds consumers that “The type of arrangement you enter into can have a huge impact on the amount of fees you’ll pay, so it’s important to understand how each works and the incentives lawyers have for using them.” It explains that:

“How much lawyers charge depends on where they do business, whether they are self-employed or working for a firm, how complex the case is and, in some circumstances, what you can pay. The market rate for any given legal service, then, is really a range of fees that often varies.”

“. . . Lawyers usually charge for their services in one of three ways—hourly rates, flat fees and contingency fees. They can also charge a retainer or “down payment” on the legal services you are purchasing. The type of fee arrangement with your lawyer can have a huge impact on the amount you’ll pay.”

“. . . Hourly fees are based on the number of hours a lawyer works on your case. If your lawyer charges $100 an hour, your fee will be $100 multiplied by the number of hours worked. . . . Flat fees are typically offered for routine legal matters that are largely paperwork, like preparing a will or getting an uncontested divorce. You are charged one specific fee for all of the work done on your case, no matter how long it takes. Finally, with contingency fees, attorneys receive payment only if they win your case”

In a too-brief section called “Lowering Legal Fees,” the UAF Guide offers ideas relevant to all fee arrangements. Here are “specific things you can do before and after you hire a lawyer to help keep legal costs down.”

“Shop carefully. One of the best ways to ensure you won’t pay more for legal services than you should is by hiring the right attorney at the start. To do that, you need to shop carefully—much as you would for any big purchase. Lawyers develop expertise in different areas of the law so you shouldn’t hire a divorce lawyer to assist you with a real estate transaction. Comparative shopping for a lawyer helps you to understand the range of services and prices available, compare differing views on your legal problem and select a lawyer who is likely to handle your case as you expect and at a price you can afford.”

“Case retainers. These fees are paid to retain the services of an attorney at the beginning of a case. This is the kind of retainer most often paid by the typical legal consumer. It may represent all of the fee, none of the fee, or a portion of it. It may be refunded or not, depending on your agreement. For example, a lawyer may charge you a flat fee of $800 for an uncontested divorce and ask you to pay a retainer of one-quarter—$200—up front. This money may also be used to pay expenses associated with the case, such as filing fees. The important thing to make clear at the outset is whether the retainer is an advance on expenses, fees or both, and whether any unused part of it will be refunded.”

“Review billing statements. When you receive your lawyer’s bill, make sure you understand what you are being charged for—don’t be afraid to question discrepancies or to ask about charges you don’t understand. Reviewing your bills lets your lawyer know you are on top of things and that you do not expect to be charged more than you should be.”

Here’s how HALT’s Understanding Attorney Fees treats the three primary types of billing arrangements, along with my comments and suggestions.

Hourly fees. As most Americans know, hourly fees are based on the time devoted to the client’s matter by lawyers or others in a firm, stated as dollars per hour. Many commentators have wrongly made billable hours a scapegoat for all that ails lawyer fees and lawyer-client relationships. As we said in the posting “chronomentrophobia [the fear of clocks]”:

from the client’s perspective, there is nothing wrong with the billable hour fee system that cannot be cured by the lawyer merely doing what is required of him or her ethically and as a fiduciary: (a) following the standards embodied in Rule 1.5(a) of the Model Code — i.e., basing the hourly rate on the experience and capabilities of the lawyer, complexity of the matter, skill required, customary local charges, time limits imposed, etc.; (b) performing in an efficient and competent manner (with no charges for time spent inefficiently or used to learn the basics in a new area); and (c) keeping the client well-informed [see Intro to ABA Statement on Principles in Billing for Legal Services; fees and the lawyer-fiduciary; Model Rule 1.4(b); and Brickman].

Although most clients still purchase legal services from lawyers by the hour, UAF has a rather brief discussion of hourly fees. The HALT Guide makes the following points:

“If your lawyer charges $100 an hour, your fee will be $100 multiplied by the number of hours worked. Lawyers also bill for partial hours spent, usually by the quarter or tenth of an hour.”

f/k/a says: Hours X Hourly Rate is meant to be the maximum that a lawyer can charge under an hourly billing agreement. The figure is not automatic or set in stone. As the 1996 Statement of Billing Principles from the American Bar Association [ABA] Task Force on Lawyer Business Ethics says: “The lawyer is expected to use professional judgment in determining whether the number of hours spent on a matter is reasonable under the circumstances of the engagement” — e.g., making appropriate reductions (“writing off” hours) for time that is not used in an efficient, cost-effective manner, or that constitutes training or getting up to speed.

Increments: An “increment” is the shortest amount of time a firm will bill in calculating hours spent working for a client. An increment of 0.10 of an hour means the firm will charge the clients for the equivalent of six minutes, no matter how much less than that was actually spent. In that context, a quarter hour seems very high and clients should resist such a large increment. [It would mean, for example, at $200 an hour, paying $50 for a two-minute phone call.] As was stated in Professional Lawyer magazine (in an article discussed below),

“A normal billing arrangement for a firm is to bill in increments of 0.10 of an hour, (6 minutes). ‘[P]rofessional persons who charge their clients fees in excess of $80.00 per hour, based upon time spent, cannot, in all honesty and reasonableness, charge their clients for increments in excess of one tenth of an hour.’ In re Tom Carter Enterprises, Inc., 55 B. R. 548, 549 (Bankr. C.D.Cal. 1985).”

“Under an hourly-fee arrangement, the more hours worked, the bigger the bill. This rewards the lawyer who puts in more hours on your case, whether or not it needs that much time.”

f/k/a says: This is true, which is why the lawyer has an ethical and fiduciary duty to work efficiently and to find out, as the ABA Billing Statement puts it, whether the matter is “of such critical importance to the client that a ‘leave-no-stone- unturned’ approach is appropriate,” or the client would instead “prefer to accept some risk in order to avoid some of the costs attendant to such an approach.”

“If you agree to an hourly rate, make sure your agreement specifies the hourly rate for your attorney as well as what you’ll pay for junior level professionals or support staff. You should not be paying the attorney’s hourly rate for work being done by administrative staff.”

The Actual Hourly Rate: You should keep in mind, when looking at a firm’s schedule of hourly rates for its lawyers that the standards embodied in Rule 1.5(a) of the Model Rules of Professional Responsibility apply — i.e., to be reasonable, an hourly rate must be based on the experience and capabilities of the lawyer, complexity of the matter, skill required, customary local charges, time limits imposed by the clients, etc.. You should not, for example, be paying top dollar for inexperienced lawyers.

“You should also ask that your hourly fee agreement include a fee cap—an amount that cannot be exceeded without your prior approval.”

“Some lawyers are willing to coach pro se litigants (those who are representing themselves in court) on an hourly fee basis. Instead of handling the litigant’s case from start to finish, they advise, coach, direct and charge for these services by the hour.” [Note: This is related to the Unbundling we mention above. With "Limited Scope Representation," the lawyer might make court appearances.]

………………………. ..

By understanding some of the ethical principles relating to hourly lawyer billing, and utilizing certain practical strategies and tactics, clients can also help ensure that their fees are no larger than necessary. Here are tips we’ve garnered from sources around the web:

.. ..Retainer Agreements: The authors of the HALT book “Using a Lawyer: And What To Do If Things Go Wrong,” Kay Ostberg & Theresa Meehan Rudy, have put together a Model Attorney-Client Agreement [5 pages, pdf) that is "designed to secure the rights and stipulate the responsibilities of both the attorney and client." Using a Lawyer tells us why a well-structured retainer agreement between the lawyer and client is important:

"As the saying goes, 'the devil is in the details.' Sophisticated corporate clients demand that their lawyers hammer out details in their attorney-client agreements. This helps to ensure that their rights are protected and the fees they'll charge are expected. The average consumer of legal services should demand the same. HALT's research shows that most disputes between clients and attorneys could have been avoided if the nature of their relationship had ben made explicit at the outset. If your attorney refuses to sign or draft an agreement that protects your rights, ask why. The answer will tell you whether or not the attorney is the sort you want to employ.

The f/k/a Gang urges legal consumers to take a good look at HALT's model agreement. As they note, "The language in this model contract is not magic. There are other ways of protecting consumers' rights in writing. However, this model will help you identify the most important protections that you should insist upon, and alert you to other possible sources of problems and frictions between lawyers and clients." Among other items, the Model Agreement urges the client to ask for the inclusion of the following clauses:

- Attorney estimates that the total cost of fees for the services of Attorney, junior members, and paralegal will not exceed the sum of ______ Dollars ($____)
- Client will not be liable for any additional costs or fees which exceed the estimates given above in ___, unless attorney notifies Client of the additional expenses required and receives permission of Client before incurring the additional expenses.

- Client will receive a billing statement monthly (or at some other appropriate interval) with detailed itemization of the attorney's junior members' and paralegals' activities in the case, the amount of time involved, and the additional costs incurred.

- Should the retainer exceed the total cost of completing the case, the remainder is to be returned in full to Client.

A consumer who wants to understand the factors that go into a well-written retainer agreement (for working on representation in a particular legal matter) should also see the article "Retainer Agreements and Rule 1.5(b)" in the December 2008 issue of The D.C. Bar magazine, Washington Lawyer, by Dolores Dorsainvil and Daniel M. Mills.

The Law Practice Today blog, which is sponsored by the ABA Committee on Law Practice Management, has a new and useful posting entitled Build a Better Fee Agreement,by David Bilinsky and Reid Trautz (posted 7/10/03). The tips are excerpted from the April 2003 edition of Law Practice Magazine. The article states, with brief explanations, that a comprehensive written fee agreement between lawyer and client should do the following . . . ." [It's worth reading the rest and the original article.]

HOURLY BILLING GUIDANCE for Lawyers (and savy clients): Earlier in this post, we mentioned the Statement of Billing Principles produced by the American Bar Association’s The Task Force on Lawyer Business Ethics in 1996. The guidelines for lawyer billing contained in the Statement should help clients better understand issues that are relevant to constructing and implementing a retainer agreement, and reviewing a billing statement. Here are some of the most important concepts and principles (emphases added):

DISCLOSURE AND UNDERSTANDING

The first guiding principle for the lawyer with respect to billing for legal services should be an understanding with the client of the basis for such billing arrangement through full disclosure by the lawyer. . . . Such understanding between lawyer and client should include not only the method to be used in calculating fees for legal services but also the scope of the legal services to be performed (and charged for) to the extent that an understanding with respect to the scope is expected to be an important factor in the lawyer-client relationship. For example, is the matter of such critical importance to the client that a “leave-no-stone- unturned” approach is appropriate, or does the client prefer to accept some risk in order to avoid some of the costs attendant to such an approach? . . .

LAWYER’S RESPONSIBILITY IN PREPARATION OF INVOICES

. . . The lawyer and law firm should make every reasonable effort to provide clients with complete and accurate invoices describing the legal services provided and the amounts charged for same. . . . Each invoice should clearly identify the legal services provided in such specificity as the client requests, the fees charged for such services, and the disbursements and other charges relating to the period being billed. . . .

HOURLY BILLING ARRANGEMENTS

The agreement by a client to be billed for legal services on an hourly basis does not justify the lawyer spending an unreasonable number of hours on a particular matter or task. The amount of time spent on a matter should be reasonable in relation to the client’s goals and expectations and must also be consistent with the lawyer’s professional ethical obligations. In general, the lawyer should have an obligation to address the matter that is to be billed on an hourly basis in a cost effective manner and to avoid “churning” hours, whether due to the lawyer being under-worked and therefore spending more time than is reasonable on the matter, the assignment of the matter or task to a lawyer who is too inexperienced to perform it competently and/or cost- effectively, or otherwise.

The lawyer is expected to use professional judgment in determining whether the number of hours spent on a matter is reasonable under the circumstances of the engagement.

Premium Billing

. . . [An] example of opportunity cost would be a client who demands an unreasonable turnaround time for certain work, thereby rendering it impossible for the lawyer to attend to other business or personal matters in the normal course. Such “rush” demands may provide a reasonable basis for a surcharge or higher hourly rate. If such a surcharge is to be implemented, however, it would require advance disclosure to and agreement by the client.

Hourly Billing Rates

When legal services to be performed are to be billed on an hourly basis, the hourly rates or range of rates for lawyers involved (or expected to be involved) in performing work for the client should be disclosed to the client… as well as, if applicable, the existence of multiple hourly billing rates for the same lawyer depending on the type of service provided.

Minimum Time Increments

. . . Legitimate use of a minimum time increment may depend on how the lawyer records the balance of the increment. Two fifteen-minute charges for two five-minute calls within the same fifteen-minute period seem inappropriate; some balancing should be used.

. . .

Learning Curve

Some clients have indicated that they do not wish to (or will not) pay for the cost of training lawyers or bringing them up the learning curve with respect to a particular substantive area of the law or a particular type of case or transaction. Resolving this issue requires communication with the client in order to ascertain the nature of the concern.

Provision by the lawyer or law firm of cost-effective services to clients requires that certain tasks be performed by less experienced lawyers whose hourly billing rates are lower but who, in the judgment of the managing attorney on the project, have sufficient expertise and experience to perform such task. Lack of experience should be appropriately reflected in a lawyer’s hourly rate.. . .

If the primary purpose of participation in a meeting or project by a less experienced lawyer in a law firm is to train such lawyer, then the lawyer’s time should not be billed to the client.

Staffing Considerations

. . . The touchstones for determining such issues as staffing should be cost-effectiveness and quality of legal service to the client. Staffing should be discussed with the client if the client has expressed an interest in such information and must be disclosed if the lawyer has created an expectation that the matter will be handled by a particular lawyer or one with a certain experience level and such is not in fact the case. . . .

. . .

In recognition of the value of continuity of representation, law firms should endeavor to staff a specific client matter with a relatively consistent team of lawyers. If a change must be made in a critical member of the team (other than in response to a client request), and this change necessitates any significant expenditure of time by the new member of the team in getting up to speed, counsel should make appropriate downward adjustments to the fees billed in such matter to avoid unreasonable charges to the client.

Overhead: Prof. Yabut says: The more overhead your lawyer has, the higher your fees are likely to be. Don’t confuse a fancy location or office suite with better service or value.

REVIEWING YOUR BILLING STATEMENT: In “Reviewing A Law Firm’s Billing Practices” (The Professional Lawyer, Fall 2001), mediator and arbitrator Gerald F. Phillips reviews billing statements received by a client from a law firm. In discussing the problems he found, Phillips gives us useful concepts to keep in mind when determining whether hourly charges are reasonable or should be reduced or eliminated. For example, Phillips discusses issues involving rounding up and incremental billing [see the excerpt quoted above]. Here are other topics covered, with select excerpts (emphases added):

C. THE BLOCK-BILLING CONCEALED THE ACTUAL TIME EXPENDED AND FACILITATED BILL PADDING

“Block-billing, assigning one time charge to multiple
tasks is a practice that is almost universally disapproved.”
U.S. Business Litigation (at page 16). It is disapproved
because it allows a lawyer to conceal the time spent on each
task and prevents the determination of whether individual
tasks were performed within a reasonable period of time. In
this case, this practice also enabled the attorneys to round
up and to bill more often for a half or full hour.

Billing Statements should show clearly the amount of time incurred with respect to each task and that information should not be concealed by such devises as block-billing.

D. THE EXCESSIVE REVISIONS WERE UNNECESSARY OR WERE REQUIRED BECAUSE OF THE POOR QUALITY OF THE ORIGINAL WORK

The Statements indicate that it was the regular practice of
the Firm to have attorneys repeatedly review and revise the
work product of others. This practice generated larger fees.If the constant “reviewing and revising” were necessary, then
the original work was not of the quality that a first rate firm
should perform. If this was the case, the firm should not have
billed you fully for both the poor quality original work and
for the time spent in making the revisions. If the tasks were
given to inexperienced young attorneys, you should not have
been billed for their training. Billing partners, when review-
ing statements, often write off time that they recognize as
excessive and the result of an associate’s inexperience.

E. THE EXCESSIVE RESEARCH AND THE REPETITIVE TASKS SHOULD NOT HAVE BEEN REQUIRED

For a Firm that specializes in the type of law required in your case and holds itself out as having that expertise one
must wonder why so much time was spent and so many revi-
sions made on what should have been routine matters for
such a firm. . . . [T]he Firm may have misrepresented its expertise.

Some of the research appears to have been used to educate or train
young associates and should not have been billed.

F. INEFFECTIVE STAFFING SUBSTANTIALLY INCREASED THE FEES

The Firm used two partners and two associates on this
case. The Billing Statements show that others often
reviewed and revised the work and that there was excessive
conferencing. The charges for conferences often did not
indicate, as it should, the subject of the meeting.

G. THE BILLING STATEMENTS WERE VAGUE AND MEANINGLESS AND DISCLOSED REPETITIVE ENTRIES

Many of the entries were vague, such as “legal research”
or “Telephone conference with X”. Many entries were
repetitive such as “Review discovery” or on successive days
billed for “Review articles.” If “legal research” was done it
is incumbent on the attorney to specify the nature of the
research. Many entries are vague, especially since they were
repeated month after month. “Reviewing” “revising” and
even editing may have been used to permit gross padding.

PRACTICAL TACTICS for the Cost-Conscious CLIENT

Several lawyers have compiled tips for clients who want to keep their bills from ballooning. here are samples:

In his “Tips on Reducing Legal Fees,” Tennessee divorce lawyer David M. Waldrop says “Divorce is expensive. Nevertheless, there are ways to reduce your legal fees.” His tips are good for divorce and other family law cases, and many of the notions can be applied elsewhere, too. Here are a few examples:

1. Prepare for your phone calls.

. . . You are charged for every phone call with your lawyer. Remember, your lawyer sells time. Therefore, make a list of the topics you wish to discuss before you call so you will not forget what you wish to discuss. Also, call only when necessary.

Do not call your lawyer at home unless it is an emergency. Your lawyer does not have your file with him. Most lawyers charge double the hourly rate if you call them at home.

4. Fee disputes. If you believe you have been over-charged, discuss it with your lawyer. If you are still dissatisfied, contact the bar fee dispute committee to mediate the dispute.

5. Keep your sense of humor. . . . It will save you money by preventing you from litigating the non-essential points. If you are going to negotiate a settlement, remember both sides have to give to reach a settlement. Otherwise, no one wins but the lawyers.

Keeping A File At Home
Organizing Documents and Filling Out Requested Forms
Compiling Questions

“You should also keep a notebook of any issues and questions that you have for your attorney noting the date of your question or issue in your notebook. When you have a sufficient number of issues or questions, you should contact your attorney for answers. By waiting until you have a number of questions at one time, you may significantly reduce your legal fees.”

Do Not Use Your Lawyer as a Therapist;
Focus on the Legal Issues
Don’t Try to Cheat

Regarding telepone calls, the New York State Bar Association’s “Choosing a Lawyer” suggests:

“If you have agreed to pay the lawyer an hourly rate for work performed on your behalf, then the time it takes to stop working on another matter, retrieve your file and consider the questions that you pose over the phone would be properly billed to you. Therefore, while you should contact your attorney when necessary in the context of the case, you should not do so on the spur of the moment. Make a list of matters that need to be discussed and speak about all matters at one time. If a paralegal can help you, do not insist upon speaking with the lawyer.”

.. For a scholarly-but-practical treatment of the ethics of hourly billing, see “The Honest Hour: The Ethics of Time-Based Billing by Attorneys” by William G. Ross (280 pages. 1996). The publisher’s synopisis says: “The Honest Hour explains how attorneys and their clients can work together to develop fee agreements that will give attorneys enough time to produce quality work while guarding against practices that exploit clients.” And, check out Prof. Ross‘s eye-opening surveys, including his 2006 – 2007 Survey.

Nolo’s IEP Guide, by Lawrence M. Siegel, was written to help parents of children with learning disabilities through the Individual Education Program process. His suggestions, however, have a much broader application:

Be organized. “Especially when you are paying by the hour, it’s important to gather important documents, write a short chronology of events, and consistently explain the problem to your lawyer. Keep a copy of everything you give to the lawyer.”

.. Be prepared before you meet your lawyer. Whenever possible, put your questions in writing and mail, fax, or deliver them to your lawyer before all meetings or phone conversations. Early preparation also helps focus the meeting so there is less chance of digressing (at your expense) into unrelated topics.

Carefully review lawyer bills. Like everyone else, lawyers make mistakes. [like transposing figures] . .. Don’t hesitate to question your bill. You have the right to a clear explanation of costs.

Ask your lawyer what work you can do.

Listen to your lawyer. . .. But large legal bills are sometimes the result of clients losing track of time or ignoring advice. . . . As a client, you should not be afraid to question your attorney’s recommendation. But part of what you’re paying for is reasonable and objective advice, — and when your attorney says not to waste time on an issue, you should probably listen.

Stuart M. Saft wrote “Reducing Legal Fees: A Ten-Step Program” (Habitat Magazine, November 2006) for the board and management of cooperatives and condominiums. Often, however, his good advice has broader application.

1. The Board Should Not Be Paying to Educate the Attorney

. . . If your attorney has not dealt with a similar issue, ask if someone else in the office has and could handle the matter. You can also consider referring that particular matter to a law firm that does have experience in the area. Using another attorney for a particular matter does not mean that your relationship with the old attorney has to end.

As an alternative, ask your attorney to bill the start-up time at a discount.

2. Don’t Micromanage the Attorney

Several times I have seen the board members or the managing agent call the attorney daily to discuss the status of the matter and to offer suggestions and to cross-examine him or her on how the matter is being handled. This adds significantly to the cost . . .

3. Appoint a Legal Liaison. There is nothing more important that having a single point of contact between the board and the lawyer. . . .

4. Listen to the Lawyer

If your attorney responds to an inquiry by noting that it is forbidden to do something based on the language of the proprietary lease, bylaws, or declaration, then it its not productive to beg or to demand of the lawyer that he or she not object to this thing being done. These documents are written in English — or at least legalese — and they are decipherable. Ask the lawyer to point out the specific language that creates the objection and review it yourself to see it you agree with the interpretation. Then, if you don’t, call the lawyer to see why he or she believes that it says what you don’t think it says.

7. Use Junior Partners, Associates and Paralegals

8. Not Every Principle Is Worth Litigating Over

. . . Lawyers make money representing clients, so if your lawyer is attempting to dissuade you from bringing a lawsuit, perhaps you should listen. Most of us will bring a lawsuit if the client insists, but we try to talk them out of it first.

9. Don’t Litigate Based on Judge Judy

10. Blame the Lawyer

. . . just say that you wanted to be tough and fight for truth, justice and the American Way, but the lawyer would not let you.

Contingency Fees:

Understanding Attorney Fees has remarkably little to say about contingency fees — and virtually no advice for reducing the often-excessive fees. Here’s the core discussion:

“Contingency fees. In this type of fee agreement (used mostly in personal injury or collections cases in which the client can’t afford to pay if the case is lost), the attorney receives payment only if she wins the case, although the client usually must still pay any expenses an attorney incurs because of pursuing the case.

“This is an all-or-nothing proposition—either the client wins and the attorney is paid, or the client loses and the attorney walks away unpaid. The theory behind contingency fees is simple. The attorney takes the risk of losing; the greater the risk of losing, the bigger the percentage. If you win, the attorney is highly compensated on the theory that he must also absorb losses on contingency fee cases that didn’t succeed.”

“The customary contingency fee is 33 percent of the settlement, although fees range from 15 to 50 percent. Some lawyers offer a sliding scale in which the percentage changes depending on the stage at which the case is settled. For example, the lawyer may collect 25 percent if you settle before trial, 30 percent if there is a trial and 40 percent if there is an appeal.”

” . . . make sure you ask that the attorney’s percentage be calculated after expenses have been subtracted from the award. This can result in significant savings for you.”

Although it states “the greater the risk of losing, the bigger the percentage,” the statement in UAF offers no clue on how the client is to determine the degree of risk his or her case poses for the law firm (the likelihood of winning and earning a fee that adequately compensates for the firm’s efforts and expenditures). As mentioned in the opening segment of this post, HALT appears to have abandoned its campaign to bring fairness to contingency fees, by giving clients enough information about the lawyer’s risk that they can negotiate lower fees. Instead, UAF seems to capitulate to the standard contingency fee, which is forced upon virtually every personal injury client.

“Last summer, HALT, a District-based legal reform group, launched its Legal Consumers Bill of Rights Project to inform consumers of their rights when hiring an attorney. Among its consumer protection provisions is the client’s right to have an objective review of a contingent fee by a court or a bar association committee to assure it is reasonable and fair. It also calls for written fee agreements in injury and death cases that cover the probability of winning, amount of award expected, number of hours of legal services required, out-of-pocket expenses the client will pay, and the availability and cost of alternative fee arrangements.”

HALT’s director told the Washington Post:

“It is a tragedy that people just swallow this one-third concept. Every consumer has a right to expect and demand that there be a relationship between the work that is actually done and the fee they pay. You have the right to be informed of different fee arrangements. Responsible and competent lawyers do that already, but there are bad apples in the barrel.

“The most important thing that any person needs to keep in mind is that they are the boss, and the terms of employment are negotiable.”

The December 1997 issue of HALT’s newsletter The Legal Reformer, which explains and contains HALT’s Injured Consumer’s Legal Bill of Rights is no longer available online. Luckily, I printed it out many years ago, and uploaded it to our webserver in pdf form. The Injured Consumer’s Bill of Rights includes the right to have the lawyer’s good faith evaluation of the case prior to signing any fee agreement, including the following information, which must be incorporated into the fee agreement:

- the probability of a successful outcome;
- the amount of recovery reasonably expected in that outcome;
- the number of hours of legal services that are likely to be required to secure that outcome;
- the amount of any costs or expense that the client must bear:
- the availability and costs of alternative fee arrangements [such as allowing the client to pay a reasonable hourly rate rather than a contingency fee]

With this information, the client can understand how strong his or her case is and attempt to negotiate a fee level that adequately compensates the lawyer for the level of risk and amount of effort required, while making sure the client wins and keeps all the money he deserves. The standard contingency fee, on the other hand, is normally the maximum allowed in a jurisdiction for the particular type of injury, and treats every case as if it justified the maximum fee. Thus, because p/i lawyers are usually very good at weeding out risky cases, injured clients often are forced to pay an unreasonably high fee.

The HALT “client’s rights” mirror those imposed on lawyers using contingency fees in a 1994 ethics opinion of the American Bar Association. ABA Formal Ethics Opinion 94-389 ($$ download from ABA; it is described here, along with a full discussion of the ethical use of contingency fees). Those two sources (along with Florida’s contingency fee Bill of Rights), were the basis for f/k/a‘s comprehensive Injured Consumers’ Bill of Rights for Contingency Fees. Prospective clients can use the HALT Bill of Rights, the f/k/a version, and Op. 94-389 to discover the kinds of questions to pose when shopping for a personal injury lawyer.

Unfortunately, although trial lawyer associations, the Federal Trade Commission, and many courts have stated that contingency fees should correspond in each case with the level of risk (see our post, “risk matters“), most p/i lawyers have refused to give up the excessive fees that are generated using the standard contingency fee.

Flat fees are often a bargain, but never take that for granted. Here’s what the HALT Guide says about Flat Fees:

“Flat fees. Many lawyers and legal clinics offer flat fees for routine legal matters, such as for uncontested divorces, will preparation, business incorporation, lease preparation and some probate work—basically uncomplicated legal matters that involve filling out forms. A flat fee means that you will be charged a specified total for work performed on your case, regardless of the time it takes to complete. . . . Often an agreement with a flat rate will require that the client also pay such “extras” as filing fees, photocopying and other out-of-pocket or unanticipated expenses.

“Flat fees are charged when lawyers can accurately predict the average amount of time a case will take. . . . Recognize, however, that a flat fee often reflects an hourly rate, so ask how much time the work will take, include this estimate in your agreement and choose an hourly figure if the math is in your favor. Usually, however, flat fees turn out to be bargains because when the work is repetitive and time-saving forms are used, the savings are passed on to clients.”

f/k/a Note: Yes, do the math and compare prices. One fixed-fee advocate recently told his weblog readers “Sophisticated clients who insist on hourly billing do so because they’re smarter than you are, not because they want you to be paid fairly.” That lawyer admitted at his weblog that he had switched to fixed fees to avoid passing on efficiency savings to clients.

“Flat fees allow you to shop around among lawyers if you have a routine matter. Ask what specifics the flat fee covers in each case to be sure the various attorneys are offering the same services for the quoted price. In other words, if one lawyer’s flat fee includes copying costs and another identical fee does not, the first lawyer is more economical. If you agree to a flat fee, make sure your agreement specifies exactly what the fee covers as well as any costs not included.”

f/k/aCautionary Note: Lawyers will often switch between hourly and flat fees for their own advantage. For example, many lawyers (e.g. in Family and Criminal matters) find themselves at court with several clients at the same time, doing motions, status calls, and sundry non-trial matters. Some would bill each client for overlapping time at court (charging, for example, $200 per hour to each of three clients for the same 60 minutes). When they were told such multiple billing was unethical, a lot of lawyers started billing a flat rate for each court appearance — say, $500 to each of the three clients, instead of $200 per hour. That could turn sixty or ninety minutes at court into a $1500 morning, whereas the three clients would have split a mere $600 tab paying by the hour, if the lawyer had spent a full three hours at court. So, you might want to ask about hourly fees when a busy lawyer is piggy-backing clients at court.

The UAF section on Alternative Fees (which apparently does not include the separate category of Flat Fees) is particularly unenlightening:

“Alternative billing. While not as common, some lawyers will use an alternative billing arrangement—for example, a lawyer working with a small business owner might offer a steep hourly or percent discount as a way to increase the volume of work he or she gets from that client.”

We can’t flesh out the topic of alternative billing here, but suggest you see our posts “other thoughtful voices on the lawyer billing debate” and “broadening the billable-hour debate” for information that can help you make smarter choices when looking at alternatives to hourly billing — remembering that each billing arrangement has both advantages and disadvantages for the client, and for the lawyer. If hourly billing gives the lawyer the incentive to work too much, fixed fees give the firm the incentive to do less (they say “be more efficient”) for the client. Indeed, if lawyers are really busy, they are less likely to be padding hourly fees, but more likely to be cutting corners for clients paying fixed fees. (see, e.g., our post “finally: NLJ on the realities of alternative billing,” Sept. 11, 2007)

Is time expended relevant? A cautionary point: Some lawyers have switched to alternative fees precisely because they want to charge more than they could with hourly billing. They are unhappy that there are only 24 hours in a day to be used billing clients, and they would rather not pass efficiency savings along to clients. [See, e.g., this post.] Yet, most clients — including you, if you’re reading this piece — want to move from hourly billing precisely to pay less, not more in lawyer fees.

Therefore, be wary of a lawyer who says the amount of time spent on your case or transaction is not relevant to the size of the fee. You should want to know how much attorney time is likely to be expended on your behalf, when deciding on the reasonableness of a “value-based” or fixed fee, if only to better compare the fee to that of lawyers billing by the hour. And, because they owe you a fiduciary duty to fully inform you and treat you fairly, lawyers should be willing to tell you their best good faith estimate of the time it will take to provide the needed services (as HALT suggested in its Model Attorney-Client Agreement, which is discussed above). Furthermore:

– In our economy and marketplace, the “value” of a product or service is not determined merely by how much the buyer needs or wants it. Otherwise, computers would cost more now than than did 20 years ago rather than much less, because they are so much more central to our personal and business lives. And, necessities like food, housing, gasoline, would be priced far higher than they already are. A monopolist may decide to charge without regard to his cost, but when there are lots of sellers competing for your business (as there are in the market for legal services in the USA, which has more than a million practicing lawyers), we expect price to stay close to cost. For a law firm, the time a lawyer spends applying his or her knowledge is the main input or cost of the service. And, for more than a century, time expended has been the primary criteria used in deciding the reasonableness of a fee under lawyer ethics rules.

– No mater how important it is for you to have a particular legal problem solved, if it won’t take much effort to fix the problem, or there are many attorneys who know how to fix it, the law firm is usually not adding much value in your situation. At times, by analogy, all it takes to prevent a major accident or tragedy is to tighten a bolt. Yet, you pay the mechanic or plumber who tightens the bolt a substantial hourly rate for the expertise it takes to diagnose the problem and turn the bolt, not an extortionist’s (or hero’s) fee for averting the calamity. The same is true for a doctor who saves your life with a simple tourniquet or by prescribing a common pill for a common but deadly malady. Don’t buy the argument that the fee for lawyer services should be the same, no matter if it takes 30 minutes or 30 hours to perform. Don’t let them change the definition of marketplace value from “a good product at a reasonable price,” to “whatever you are willing to pay to solve your problem.”

“Certainty Premium“? Some lawyers charge a “premium fee” higher than what they believe a client’s hourly bill is likely to be, and justify it by saying they are giving the client “certainty” and taking the risk of having to do more work than expected. Certainty can be very important for some clients and worth a higher fee; and risk can warrant a law firm charging a higher fee. But, most clients seeking alternative billing arrangements are not interested in “certainly paying a lot more” than they were likely to have paid by the hour. To know whether a higher Certainty Premium is worth the price, you need to know how much you most likely would be paying with an hourly billing arrangement, and how likely it is that the hourly fee might be significantly smaller or a lot bigger than the fixed “premium fee.”

Therefore, before entering into a fixed fee agreement that includes (implicitly or explicity) a Certainty Premium, the lawyer owes you a good faith estimate of the range and probability of likely fees. [For example: Given your situation, the most likely hourly fee, and how likely an hourly fee could be half of that estimate, or could be twice that estimate.] You can be sure that the lawyer charging you a fixed fee is making those estimates (if only rougly in his or her head), and has weighted the price to minimize its risk of underestimating the amount of work that needs to be done. Until you know the range and probability of higher and lower fees, you really can’t make a rational decision to pay a Certainty Premium.

We hope the information above will help clients to avoid unnecessarily high legal fees. (Sadly, they will still, in general, be painfully high.) Don’t be too shy to ask the questions and (politely) assert your rights. Remember, lawyers have ethical and fiduciary duties to fully inform clients and to charge only reasonable fees.

Final Note: Criminal Defense Fees: These days, most private criminal defense lawyers provide their services on a fixed fee basis, but many also use hourly billing arrangements; they’re not allowed to use contingency fees. We won’t try to cover this topic here, except to say that we disagree strongly with Brian Tannenbaum’s assertion in his e-book The Truth About Hiring a Criminal Defense Lawyer, that a client should never ask a lawyer if he charges a consultation fee and “never negotiate,” because you’ll be perceived as cheap or unsure whether he is worth his fee. There are too many lawyers competing for your business to put up with one who is so cavalier about your financial distress. As Mark Draughn said when he reviewed Brian’s e-booklet, “Everything is negotiable. It’s just a conversation.” [We can't vouch for them, but you'll find materials on criminal defense fees here, here, and there.]

]]>http://blogs.law.harvard.edu/ethicalesq/2009/02/28/understanding-and-reducing-attorney-fees/feed/2rivers, sunset, metaphors galorehttp://blogs.law.harvard.edu/ethicalesq/2009/02/26/rivers-sunset-metaphors-galore/
http://blogs.law.harvard.edu/ethicalesq/2009/02/26/rivers-sunset-metaphors-galore/#commentsFri, 27 Feb 2009 02:07:22 +0000http://blogs.law.harvard.edu/ethicalesq/?p=10654 February thaw
a new patch of orange
on the river

… by dagosan

Catching another sunset or two in photos before we “archivize” this weblog on Saturday seemed like a good idea, as the afternoon waned today. [click "more" below to see some of the photographs] Naturally, I managed to dawdle so long at this keyboard that I only caught the last few moments before the sun dipped behind nearby hills. My timing was a metaphor of sorts for much that has happened (and not) lately in my life. Of course, the sunset itself was a too-obvious symbol (along with the promised sunrise after a long dark night) for the ending of an important era in my life.

.. ..

- sunset along the Mohawk River, Schenectady, NY, at Cucumber Alley, Feb. 26, 2009; dedicated to Arthur P. Giacalone, who would have been 90 years old today -

Once I got the lay of the land, I knew I had to go nextdoor to the Cucumber Alley yard of Bob and Sylvie Briber, if I wanted to capture the sunset reflecting off the newly melted waters of the Binne Kill (creek), where it joined the Mohawk. At that point, the metaphors for my life-after-f/k/a multiplied. From ice on the Mohawk breaking up, and traffic heading across the Western Gateway Bridge,

to the two fools walking near broken ice .. ..

.. .. and the newly uncovered picnic table, the sunset set the stage for new stages, dangers, and opportunities.

Of course, living in the present moment means realizing that communing with sunset was not getting my final posting done as f/k/a‘s self-imposed March 1st deadline looms near. So, it’s time for me to get back to fretting over lawyer fees. I do hope to return to this post to add a few more river-sunset haiku over the next couple of days.

rivermoon
we run
out of words

…. by Roberta Beary – “Season’s Greetings 2009 Letter”

p.s. .. .. As I wrote a couple months ago, there is definitely something about sunsets that holds my attention and affection. Click that link for a few more shots along “my” stretch of the Mohawk River, in Schenectady, and more sunset poems. Two nights ago (Feb. 24, 2009), I found a winter sky with a bit more sunset color than this evening. Here are two shots from the end of my block taken that evening.

.. ..

- – photos by David Giacalone, Schenecady, NY, February 2009 –

waking too late
for dawn
- he pencils-in sunset

.. by dagosan

afterwords: This is the “last f/k/a sunset,” shot from my backyard, along the Mohawk in Schenectady, on February 28, 2009, just before I wrote the last posting for this weblog. Looks rather bittersweet, don’t you think?:

It’s my last week of posting, so I’m going to indulge myself and discuss a pet peeve or two of mine involving the rhetoric of lawyers and consultants who dislike (and often scapegoat) the billable hour. Rather than sticking with logic, reason, or economics, they often employ hyperbole, overkill, psycho-babble, Straw Men and class warfare (not to mention ridicule). As discussed below, they even insist that being paid by the hour demeans a lawyer. Please.

Thus, as mentioned last week, Ron Baker’s acolyte and echo Christopher Marston recently insisted that “there is not a single customer that wants to buy an increment of our time. Increments are excrement.”

Of course, I’m not an excrement expert (and Mr. Baker has accusedme of ranting and raving and being “someone who lacks a rudimentary understanding of basic economics.”), but the not-buying-time cliche is just a silly Straw Man. The client who pays by the hour, like anyone who employs a lawyer to do legal services, “wants” the lawyer to apply his or her legal knowledge, expertise and experience to the client’s problem or project. Hourly billing is simply one way to compute compensation in a situation where the buyer does not employ the service provider exclusively (and the amount and type of services needed may not be reasonably discernible in advance). As Prof. Jeffrey Lipshaw recently wrote:

“The real question is whether, overall, the total price approximated by billable hours is an acceptable surrogate for the value to the client. . . . [M]y intuition as a former buyer and seller is that the overall acceptability of the surrogate is indeed revealed by the overwhelming instance of its use in the market.”

“Neither party seems to care that much about the billing model. Cost certainty? yes. Getting value? yes. Those are worth fighting for, but method of billing? If clients or firms were demanding changes, wouldn’t we have seen it by now?

“The push-pull between clients & firms when negotiating price (and understanding costs, for firms…) is going to exist in either scenario, and frequently depends on the situation. Think: area of practice, work volumes, the substance & length of client-firm relationship, average time for matter execution, and so on. But rather than describing this balance to readers, the sensational prevails – pitting one billing model against the other in a full-on death match! I suppose it’s not sexy to say ‘different clients & matters may require different billing models’. A shame, really.”

At times billing by the hour is a reasonably good measure of the value of those services, and at times it may not be. More price competition is needed for hourly rates, and abuses need to be eliminated, along with excessive quotas imposed on lawyers by their firms. But, hourly billing is clearly not an inherently irrational, exploitative or unethical method for calculating price. By painting hourly billing as the benighted source of all evil, proponents of alternative pricing methods hurt their credibility — especially, when they fail to acknowledge there are incentives inherent in every pricing method that could lead to unreasonably high (or low) fees. (see e.g., ALF#1; and our post “broadening the hourly billing debate“)

.. Mauled by Marxism!Demeaned by Da Man! Ronald J. Baker (see prior post), the guru of “value pricing” and ceaseless crusader against hourly billing, isn’t content with his price sensitivity charts and promises of higher fees in his quest to convert lawyers and accountants from the Almighty Hour. Ron motivates poor downtrodden professionals with his brand of class-based snobbery. He urges them to rise up to capture their true (higher) value by labeling hourly billing as Marxism, and contrasting his superior “knowlege workers” with mere “cattle,” “union workers,” “blue collar occupations,” and those who “work with their hands” rather than their heads, and are stuck laboring by the hour (see, e.g., here and there).

Meanwhile, the usually level-headed and clear-minded Bruce MacEwen of Adam Smith Esq, recently evaluated the billable hour (in “The NYT‘s Obit for the Billable Hour“, January 31, 2009). Included in Bruce’s “Con the billable hour” list is this factor:

In addition, conflating the issue of hourly billing with the problem of the grossly excessive billable hour quotas imposed by many firms, Bruce goes on to say: “Lawyers have every incentive to work day and night, and no incentive to recharge their batteries . . . We can debate whether, in the long run, this will produce pale and narrow automatons or whether utter and uncompromised dedication to a profession, 24/7, is the only route to serious excellence, but the point is that decision should be made by each individual with free will unfettered by the hands of a stopwatch.”

The greed that has led to over-blown billable quotas is a separate issue from the appropriate use of hourly billing to arrive at fees. Indeed, as we said years ago in the post chronomentrophobia, “from the perspective of the overworked associate or partner, there is nothing wrong with the billable hour fee system that is not very likely to be carried over to any alternative billing arrangements, so long as the firm expects the shift to be made without reducing its income or profits, and the lawyer expects the same income.“

In a nation where the vast majority of both blue and white collar workers receive their income based on intervals of time (hour, year, week, etc.), is being paid based on time expended really a demeaning remnant of Marxism? That’s silly, at best; unseemly manipulation, at worst. Many of the most talented and respected people I know are paid according to a clock or calendar. And, many members of the public (myself included) believe that a larger percentage of “blue collar” workers than of lawyers perform truly valuable services.

Consider:

Most of us would not be the least bit insulted if an employer or customer wanted to hire us on an exclusive basis for a year, a month, a week, or as long as a particular project took, and offered to pay us based on an appropriate interval of time. We might want to suggest an alternative way to calculate our compensation (e.g., a flat fee, adding bonuses for success, splitting profits), but we would not be insulted.

Why does it become demeaning then, when someone who will not get your services or time exclusively — because you will also be working for other clients or employers — suggests compensation based on hours worked? In two words: It doesn’t. Period.

By the way, even when a law firm is being paid under a “non-demeaning” alternative method of pricing, I bet their associates are getting paid based on an interval of time.

It’s naptime. I’m setting my alarm clock.

]]>http://blogs.law.harvard.edu/ethicalesq/2009/02/26/alf4-crushed-by-clocks-insulted-by-intervals/feed/0all that great haikaihttp://blogs.law.harvard.edu/ethicalesq/2009/02/25/all-that-great-haikai/
http://blogs.law.harvard.edu/ethicalesq/2009/02/25/all-that-great-haikai/#commentsWed, 25 Feb 2009 15:53:43 +0000http://blogs.law.harvard.edu/ethicalesq/?p=10652In this last week of new posting at f/k/a, how can I possibly put together a piece that pays adequate homage to the vast body of haikai — haiku, senryu and related poetic-literary genres — that our Honored Guest Poets have allowed me to share with you? In two words: I can’t.

Beginning in late November 2003, with a little feature located in our Sidebar called “haikuesque,” this weblog has brought you “one-breath poetry” by some of the finest English-language haiku poets alive (plus hundreds of translations of the work of 19th Century Japanese Haiku Master, Kobayashi Issa, by David G. Lanoue). In total, 27 well-known and respected haijin have generously let me share their poetry with you, in my role as Haiku Missionary, bringing the joys of “real haiku” to lawyers and other folk not familiar with the genre. [The post "Yes, Lawyers and haiku"explains why haiku seems like a perfect art form for lawyers and others in our too-busy society.] Little did I know that rubbing elbows with some of the best haiku poets would inspire me to work hard at the craft myself, and would also result in my making some of my very closest friends.

Other than repeating here my heartfelt, immense gratitude to each of our Honored Guests, there really is no sufficient way to express my thanks or sum up their contribution to the success of this weblog. As suggested here, I have neither the time nor inclination to select my “favorite” haiku by each poet. Happily, their haikai will remain at this site for as long as Weblogs at Harvard Law School exists. So, I hope readers of f/k/a will use our search function or go often to our Honored Guest Poets Index page, and click on links to each poet’s f/k/a archive. Then, sample their wares, and let them seduce you with the charms of haiku.

Instead of further farewell fanfare regarding our Honored Guest Poets, I’m going to do what I would have done in the normal course of events this week: Present more haikai selected as among the very best of their genre for inclusion in “white lies: Red Moon Anthology 2008” (see our prior post for details).

Here are two linked-form pieces written by three of our most-honored Guest Poets.

last night, the way it always happens–i slivered some
tinder for the fire, then ramped it up into an ardent
blaze that lit the undersides of the leaves. i warmed
some food over the flames, ate it slowly and with
attention. i washed out the pots and stared into the fire,
watching the sparks rise and fall and finally go black
against the black sky and earth. i felt the cool come in
over the water on the winds. i listened to its white noise.
i listened.

note: this is #3 in our final week’s ALF Series on American Legal Fees; click for #1 and #2; and #4-

While I was in law school, bar association Minimum Fee Schedules went from being commonplace, apple-pie, “old-time rock-n-roll” in the legal profession, to being Risky Business in violation of antitrust law. The fee schedules were lists of recommended minimum prices for common legal services. Through disciplinary actions and ethics opinions, bar associations made it clear that a pattern of charging less than the minimum fee constituted misconduct. See, for example, this NY Bar ethics opinion from 1964; a 1961 Colorado Bar opinion; and the Virginia Bar opinion discussed by the Supreme Court at Fn 1. in Goldfarb. The president of the New York Bar Association had himself requested the 1964 opinion concerning departures from the minimum fee schedule, and his so-called ethics committee agreed with him that:

“[T]o let it be known, by whatever means, that a lawyer will customarily charge for his services less than the recommended fees set forth In a duly adopted schedule is not in accordance with Canon 12 and is unethical as a form of solicitation and advertising.”

At the end of my 2L year, the Supreme Court’s decision in Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), closed the book on those quaint little non-compete clauses, holding that the Fairfax County Bar Association’s minimum fee schedule was price-fixing in violation of §1 of the Sherman Act. Until then, bar groups had gone around saying they could do whatever they wanted regarding fees, because there was a blanket “learned profession” exemption to the antitrust laws, and that they also had State Action immunity for conduct permitted by state courts in overseeing the legal profession. However, as the case Goldfarb syllabus explains.

“The schedule and its enforcement mechanism constitute price-fixing, since the record shows that the schedule, rather than being purely advisory, operated as a fixed, rigid price floor. The fee schedule was enforced through the prospect of professional discipline by the State Bar, by reason of attorneys’ desire to comply with announced professional norms, and by the assurance that other lawyers would not compete by underbidding. . . .

“. . . It is not enough that the anticompetitive conduct is ‘prompted’ by state action; to be exempt, such conduct must be compelled by direction of the State acting as a sovereign. Here the State Bar, by providing that deviation from the minimum fees may lead to disciplinary action, has voluntarily joined in what is essentially a private anticompetitive activity, and hence cannot claim it is beyond the Sherman Act’s reach.”

While in law school, we discussed the fee schedules a little bit in my Professional Responsibility class in 1974 (where my famous Harvard Law professor believed lawyers should not be allowed to advertise), and much more in my antitrust classes. [Thereafter, for more than a decade at the Federal Trade Commission, my law practice was focused on the anticompetitive practices of learned professions like medicine and law.]

I’m bringing up this topic now, before we close shop here at f/k/a, because I’m afraid far too many members of the legal profession (and virtually all of the public) have forgotten this chapter of lawyer history and lessons to be drawn from it and its aftermath. A lot of lawyers reading this weblog have suggested the f/k/a Gang is far too suspicious of bar associations and lawyers when it comes to fees and competition. But, I want the “don’t be such a cynic” crowd to remember the Minimum Fee Schedules and what they say about our profession. For me, history (including rather recent history at that) clearly shows:

lawyers almost always feel underpaid and entitled to higher fees

lawyers hate competition, especially price competition and related advertising, and will use peer pressure and ploys like an appeal to the “dignity of the profession” to stifle rivalry

lawyers will exploit any pricing mechanism (turning it into a racket) — and will always find new ways to increase fees when one method of billing becomes disfavored

You might protest that there must be a good, client-centered motive behind the adoption of Minimum Fee Schedules. Surely, as conspiring doctors often claimed (unsuccessfully) during antitrust investigations over the past three decades, it was done to assure that services were of a high quality and consumers protected from slipshod work. Well, I think the experience of the Wisconsin Bar was typical, and folks there were nice enough to compose a history “History of the Organized Bar in Wisconsin“, which includes an entire Fee Schedule chapter. Chapter Nineteen begins like this (emphasis added):

“For a hundred years after statehood Wisconsin lawyers were inadequately compensated. . . . [M]ost of the lawyers who became well off did so through side ventures. Much of the fault lay in a haphazard system of charges for service.”

The discussion goes on to tell about early efforts at devising fee schedules. It started with a “Fee Bill” in 1844, signed by a dozen lawyers in Milwaukee County. Then, after many forms and revisions, by 1959:

“The American Bar Association’s committee on Economics of Law Practice hammered hard at the economic plight of the profession and what could be done about it. The post-war lawyers were keenly aware of the poor economics of the profession. The stage was set for an event that had far reaching impact on the lawyers’ pocketbooks.

“The fee schedule was extensively revised in September 1959. . . . [T]he Executive Committee voted to publish and distribute to all 6,000 members a “Minnesota Type” fee schedule book. . . . Binders were procured, the schedule printed, and it was shipped to all lawyers and judges by Feb. 1, 1960.

“The new schedule of minimum fees hit the Bar like a welcome rain on parched fields. Partly because of the attractive binder and the ease with which the schedule could be used, within six months the recommended fees became accepted statewide as the reasonable and customary minimum charges for lawyers’ services. The fee book urged the members to recognize that an average charge of $18 per billable hour was necessary if the lawyer wished to net, before taxes, but after payment of overhead costs, about $14,500 per year.

“The impact of this new schedule was estimated to have raised the lawyers’ incomes by 25 percent to 50 percent within three years. Coupled with new law office management techniques, the lawyers were well on their way out of the financial morass that they had suffered through for 100 years.”

Chapter 19 then discussed the demise of the Fee Schedule due to antitrust scrutiny:

“While the fee schedule was never designed to be other than a guide to fair charges, and only minimum charges at that, an opinion by the Ethics Committee to the effect that continued, flagrant, and publicized fee cutting was in effect a form of advertising and as such a violation of the Canons of Professional Conduct, undoubtedly led many to fear sanctions if they cut fees. The State Bar did formally change the name of the schedule from one of minimum fees to a “customary fee guide” in June 1972, but this came too late to save the schedule.

“Although republished and clearly designated as a fee guide, and not mandatory or compulsory, this did not satisfy the federal officials that the anti-trust implications of fixed fees had been eliminated. The anti-trust division of the U.S. Department of Justice “opened a file” on the State Bar late in 1972, and notified the Executive Director that suit would be commenced to force discontinuance of the fee schedule. . . . Within the year, acting under similar pressure, almost every state bar had repealed its fee schedule.”

Was the Wisconsin Bar suddenly plunged into a blood-bath of discounting and rate cuts? Of course not, we’re talking lawyers. Instead, from the perspective of the organized bar, “This repeal had an unanticipated favorable result.” To wit,

“What happened was that there had been massive shift to keeping time records and charging based on time. This shift was largely due to the revision of the schedule. This not only produced greater income but fairer fees to the clients.”

Even better, once the Goldberg decision (with its huge monetary penalties), “clinched the doom of all fee schedules, mandatory or advisory,” lawyers across the State were soon encouraged to raised their hourly fees:

“Following the abolition of the fee schedule, the Wisconsin Supreme Court gave the bar something even better. In a case involving fees for criminal defense, the court recognized in its opinion that a fee of $45 an hour was entirely proper as being the prevailing average rate. Coupled with the bar’s shift to time records and hourly charges, this pronouncement of the court was a welcome reinforcement to the fees being charged.

“In retrospect, the adoption of fee schedules by the bar association were, in light of the times and conditions, both essential and useful. The sad state of the bar economics in the early 1950s, fraught with non-businesslike practices and lack of record keeping, made the publication of the fee schedule book in 1960 timely and helpful. . . . By the time the anti-trust attack was mounted, the fee schedule had accomplished its purpose, and undoubtedly had outlived its usefulness.”

In concluding the chapter, WisBar pats itself on the back and exclaims: “The economics of the bar had turned around and the State Bar was instrumental in bringing it about.”

Is the era of income-raising Fee Schedules and its melding into the epoch of higher-still “prevailing hourly rates” just ancient history, irrelevant in the enlightened 3rd Millennium? I doubt it. Almost every observer of the legal profession seems to believe it is significantly more commercialized and profits-driven than it was in the pre-Goldberg era. Clearly, more and more lawyers have no problem declaring publicly that they deserve to become very rich, to charge what the market will bear, and to leave none of the client’s money on the table. And, they are aided and abetted by marketing experts who tell them they are under-valuing their services and need to manipulate images and perceptions to reap premium fees.

Despite market forces that in any other industry would bring vigorous price competition (i.e., an over-supply of providers and dwindling number of buyers able or willing to afford their services; consumers better educated and more assertive than ever of their rights in the marketplace; and technological advances that reduce the labor needed to produce their product and allow buyers to do much themselves or use less-costly providers), we see bar members advising each other not to give discounts (e.g., here and there), and we see no marketing based on price (except for those who try to stand out by charging more than their rivals). And, we continue to see bar associations acting like guilds. For example:

Meanwhile, the American Bar Association revamped its rules on legal fees in its Ethics 2000 project, to deny injured consumers protection against unreasonably high “standard contingency fees.” (See my 2002 Open Letter to the FTC)

The President of the New York State Bar Association proposed far stricter advertising rules in 2006, saying he wanted to limit lawyer advertising “to the fullest extent permitted, within the limitations of the First Amendment.” See our prior post. And the Bar Association passed it, seeking to preserve lawyer dignity.

Faced with nonlawyer suppliers of services such as real estate closings, and fearing that giving consumers more choices would drive down prices, the Massachusetts Bar rejected the advice of the U.S. Justice Department and the Federal Trade Commission and voted for the broadest definition of “the practice of law” — and therefore of the “unauthorized practice of law” — in the nation. See our post “bar & guild.”

There’s no reason to think the legal profession has changed its stripes or its priorities. No reason to think lawyers will compete for clients on price. Therefore, please don’t forget that, for over a century and until forced to stop, the self-regulating organized American Bar decided to mandate minimum fee schedules when its members felt underpaid. And, it did it under the hypocrite’s banner of professional responsibility and ethical obligations.

]]>http://blogs.law.harvard.edu/ethicalesq/2009/02/24/alf-3-dont-forget-those-minimum-fee-schedules/feed/0foxes guarding the golden eggs [ALF #2]http://blogs.law.harvard.edu/ethicalesq/2009/02/24/alf-2-foxes-guarding-the-golden-eggs/
http://blogs.law.harvard.edu/ethicalesq/2009/02/24/alf-2-foxes-guarding-the-golden-eggs/#commentsTue, 24 Feb 2009 19:13:16 +0000http://blogs.law.harvard.edu/ethicalesq/?p=10556- note: this is #2 in our ALF series on American Legal Fees; click for #1 and #3 and #4-

ALF: But, Yabut, why can’t the Melmac Bar & Grill sponsor the Feline Protection League? You know how important cats are to us.

Yabut: For snacks and meals, you mean.

ALF: Our motto remains: “we always serve you first.”

The f/k/a Gang has been writing about the lax, self-regulated lawyer discipline system since we started this weblog in the Spring of 2003. [See Should Lawyers Control Lawyer Discipline?, June 22, 2003, and links on our Lawyer Disciplinary System Page.] Sleepy Bar watchdogs often seem to be enabling their lupine kin rather than protecting the sheep. Like the legal reform group HALT, we believe our nation should:

For more, see HALT’s 29-page (pdf) paper “Consumers of Legal Services: Unprotected and Underserved,” which notes: “The system of attorney self-regulation is an abject failure and lawyers’ so-called ‘Rules of Professional Responsibility’ do not require attorneys to provide even the most basic consumer information to prospective clients.” HALT urges the broader consumer advocacy community to join their efforts to help achieve “Simple, Affordable, Accountable Justice for All.”

Foxes in the Chicken Coop: We’ve spent 6 years complaining about bar associations that act like mercantile guilds, by protecting lawyers from competition rather than clients from greedy lawyers. There is, in fact, no better reason to junk the self-regulatory system utilized by the legal profession than its utter failure to take its ban on unreasonable fees seriously. In most jurisdictions, the rule against excessive fees has devolved in practice into merely a ban on outright felonious, fraudulent, or otherwise dishonest billing practices (e.g., billing for phantom hours, charging more than one hourly-fee client for a particular interval of time, keeping unearned retainers), rather than telling a lawyer “You’ve charged this client far more than your services of worth.” As demonstrated by their reactions to opinions expressed at this weblog, many lawyers have convinced themselves that any fee a mentally-competent client agrees to is by definition “fair” and they should be able to charge whatever the market will bear.

Except for judicial review in million-dollar cases, the monitoring of excessive fees by the legal profession has been basically delegated to Lawyer-Client Fee Dispute programs. When HALT reviewed such programs state-by-state in 2007, and issued Fee Dispute Report Cards, it found:

“The most pervasive complaint about lawyers is that their fees are too high for the work done. But in evaluating the programs established to settle these disputes between clients and lawyers, our Report Card found a system plagued by an appalling pattern of biased procedures, insufficient resources and little enforcement.” And,

“By allowing lawyers to refuse participation in the fee arbitration process, hiding information from the public about the system, placing roadblocks in front of consumers wishing to resolve a fee dispute, stacking arbitration panels with attorneys and refusing to assist clients in recouping their money, fee arbitration programs across the country are routinely failing to provide a much-needed service to American legal consumers. Until there is meaningful reform, the legal profession has only itself to blame for the widespread public belief that lawyer fees are out of control and going unregulated.”

If self-regulation isn’t to blame, how else can we explain:

So Little Guidance from the Bar or Bar Counsel on How to Avoid Hourly-Billing Excesses and Abuse: You have to look pretty hard to find actual, practical discussion from bar associations or official bar sources on how lawyers and firms can properly use hourly billing. (One exception, which itself could use some amplification, is the 1996 Statement of Principles from the ABA Task Force on Lawyer Business Ethics). As a result, far too many lawyers seem to have forgotten that:

– Hours Expended x Hourly Rate is meant to be the maximum fee that a lawyer can charge under an hourly billing agreement. The figure is not automatic or set in stone but, as the ABA Statement of Billing Principles says: “The lawyer is expected to use professional judgment in determining whether the number of hours spent on a matter is reasonable under the circumstances of the engagement” — e.g., making appropriate reductions for time that is not used in an efficient, cost-effective manner.

– Having multiple partners and associates billing their full hourly rates for attending a meeting or court session where they have virtually no active role is unacceptable. In addition, as the ABA Statement of Billing Principles says, “If the primary purpose of participation in a meeting or project by a less experienced lawyer in a law firm is to train such lawyer, then the lawyer’s time should not be billed to the client.”

– Excessive time spent reviewing and rewriting the work of other lawyers suggests that the original work was not adequately done and should not be billed at regular rates, if at all.

Never sanctioning nor threatening to sanction a firm for imposing excessive hourly-billing quotas on its attorneys, despite the incentives created by such quotas to over-produce and pad bills, and the devastating impact on the lives of lawyers and on their ability to put the client’s interests first. See Sanction This (Firm)! (March 1, 2004). As that post points out, when the ABA’s Ad Hoc Committee on Billable Hours produced a Model Diet meant as a “best practices” summary for law firms, its suggestion of “2300 Creditable Hours for Lawyers” per year would actually mean as much as 60 hours at work per week for associate attorneys.

Allowing the Standard Contingency Fee — charging every client the same percentage fee [one-third or more] or fee structure — to continue. Virtually every client is charged the same “standard fee” [one third or 40% or more], no matter how easy and lucrative a particular case may be, although its use is contrary to the history and rationale for the contingency fee, and often results in excessive fees not justified by the risk taken by the lawyer of working without reasonable compensation; see our post on ethical duties when using contingency fees.

Indeed, in 1994, a courageous panel of the American Bar Association challenged the use of standard contingency fees and percentages not related to the level of risk taken by the lawyer in Formal Ethics Opinion 94-389: Contingent Fees ($$ download; discussed in detail here). The ethics committee noted that the principles were often “honored in the breech,” and called for the Bar to “redouble its efforts to assure that the ethical obligations associated with entering into a contingent fee arrangement are fully understood and observed.” Instead, the personal injury bar used the ABA’s Ethics 2000 revisions to the model rules to undo Op. 94-389, by eliminating all phrases in official commentary to the rules that directly support the reasoning of the 1994 Opinion and adding wording that could be used to support standard contingency fees. (See my 2002 Open Letter to the FTC)

Overlooking Fiduciary Obligations: When it comes to setting fees, you’d never know that lawyers were fiduciaries, with special obligations (far beyond arm’s length marketplace relationships) to fully inform clients and treat them fairly. For example, many lawyers argue that their fiduciary duties toward the client do not kick in before the retainer is signed. Very few “counselors at law” feel any obligation at all to advise clients about the existence of less-expensive options, such as unbundling, mediation, or pro se resources on court websites. (see prior posts “fees and the lawyer fiduciary,” and “the lawyer’s fiduciary duty to disclose“).

The lack of Consumer Guides to help clients fight for and obtain well-crafted retainer agreements that are, like HALT’s “Model Attorney-Client Agreement” (regarding hourly billing) “designed to secure the rights and stipulate the responsibilities of both the attorney and client.” For the types of information that would help, see: “Retainer Agreements and Rule 1.5(b)” (Washington Lawyer, December 2008); HALT’s Injured Consumer’s Legal Bill of Rights (The Legal Reformer, December 1997), and the f/k/aInjured Consumers’ Bill of Rights for Contingency Fees. Such Guides or Model Agreements should be available to every client, and lawyers should have to make sure that potential clients have had the opportunity to read, use, and understand them, and negotiate appropriate retainer agreements. Of course, if nonlawyers controlled lawyer discipline, lawyers would have to offer clients such agreements in the first place.

The United Kingdom and Australia have taken the regulation of lawyers away from the bar. (see this post, and this) America’s legal consumers should also be able to trust that our watchdogs are protecting us chickens and our eggs rather than the foxes at the Bar.

p.s. Consumers need to protect themselves with information. When it comes to fees, you may want to check out our last piece of legal punditry here at f/k/a: “understanding and reducing attorney fees” (February 28, 2009)

What a strange coincidence: Just as I was announcing that this would be the last week of production for f/k/a, my friend “Ed Post” was putting together this week’s version of Blawg Review — #200!! — which opens with a link to Darren Rowse’s ProBlogger post, “If your blog died today . . . what would it be remembered for?“. Happily, the 200th milestone for Blawg Review is not its last edition. As its anonymous Editor puts it:

“Not to worry; we’ve come to praise Blawg Review, not to bury it. This moot funeral is not a morbid affair, but a celebration of everything good about Blawg Review.”

Like every issue of Blawg Review, this week’s puts the spotlight on the best material posted during the prior week at law-related weblogs. As part of the 200th-edition celebration, Ed has structured this issue around an apt Traveling Wilburys metaphor — a musical group composed of rock-n-roll superstars whose collaboration magically “was greater than the sum of its parts.”

One of my favorite poems posted here at f/k/a is this senryu by lawyer-poet Barry George:

The faux funeral of “Ed Post” and his Blawg Review inspired dagosan to pen a new version this morning:

his noisy wake –
the man who let others
do most of the talking

…. by dagosan

Blawg Review, which is to say Ed and many of his hosts, has always been bery-bery good to this weblog — from giving us the Blawg Review “Creative Law Blog Award” in 2005 [see "thanks a lot (for all this pressure)," Dec. 27, 2005], to including f/k/a in Ed’s “Simply the Best” Top Ten Blawg lists [see our post, October 5, 2007], letting us host Blawg Review #52 (April 11, 2006), and mentioning our work often in the weekly Review. Behind the scenes, Ed has also often acted as our long-distance proofreader extraordinaire (saving the Gang from many embarrassments), and as cheerleader and moral support when stress and fatigue and Weltschmerz made me want to throw in the towel.

Ed’s two stops in Schenectady to visit this cranky blawger — memorialized here and there — were testaments to the ability of the blawgiverse to create and nurture more than virtual friendships.

So, congratulations, Ed, for creating an enduring, high-quality blog carnival. And, heartfelt thanks for all you’ve done to create and celebrate the blawger community, and done for this little weblog and its humbled Editor.

bookie’s funeral
the undertaker pays
his debt

…. by ed markowski

As usual, Ed has also reminded me that I have a lot work to do this week — crafting an auto-obituary and apologia for this weblog. Because we tried to close down this little project once before, after only 19 weeks in busines, I guess the second (and last) time should go a little more smoothly. See “exitedEsq: going dormant (gonna miss ya)” (October 11, 2003) Re-reading that post, I see there were a lot of lessons I never learned and a lot of mistakes repeated since our premature death notice.

On the other hand, we got such nice obits from other bloggers (back before Denise had even coined the word “blawg”), it’s a wonder we ever started back up. Living up to our death press was quite daunting. See, e.g., this humble-making post by law-blog supertar Ernie Svenson, a/k/a Ernie the Attorney, “Requiem for a Heavyweight – ethicalEsq? is shutting down” (Oct. 12, 2003). Actually, the blog-obituaries were so generous, it’s a wonder I haven’t sought even more long before now.

]]>http://blogs.law.harvard.edu/ethicalesq/2009/02/23/nostalgic-about-blawg-review/feed/8other thoughtful voices on the lawyer billing debate [ALF #1]http://blogs.law.harvard.edu/ethicalesq/2009/02/22/alf-1-other-thoughtful-voices-on-the-lawyer-billing-debate/
http://blogs.law.harvard.edu/ethicalesq/2009/02/22/alf-1-other-thoughtful-voices-on-the-lawyer-billing-debate/#commentsSun, 22 Feb 2009 20:31:26 +0000http://blogs.law.harvard.edu/ethicalesq/?p=10621 … We’re going to permanently stop production at this weblog on March 1, 2009. As Your Editor and his alter egos wind down the blawg formerly known as ethicalEsq, the f/k/a Gang is going to do what we’ve done since the spring of 2003: Focus our punditry on American Legal Fees [ALF], with our primary concern being not the welfare of lawyers but the interests of the client — especially, the “average,” unsophisticated or inexperienced buyer of lawyer services, who is often priced out of the marketplace or left with crushing debt after an encounter with a lawyer. [see our Fees Page for links to six years of posting on the topic; update: click for ALF #2 ; #3; and #4; plus our farewell fee opus "Understanding and Reducing Attorney Fees" (Feb. 28, 2009)]

In our last-days ALF Series, we’re going to try to be slightly less cynical than the cranky, mischievous, but goodhearted tv character Gordon Shumway, a/k/aALF (the Alien Life Form, who was created by Paul Fusco). We will, however, keep in mind this interchange with his earthly landlord and friend, Willie Tanner:

Willie: Some people are so blinded by the thirst for money, that it causes them to lose their values, and do things they shouldn’t do.

ALF: Well, that explains Ghostbusters II.

We think it also explains much of what is wrong with American Legal Fees and the relationship between lawyers and clients.

…. While bemoaning too-high fees and too-low morale in the legal profession, ethicalEsq, Prof. Yabut and I have been saying for years just how silly it is to scapegoat hourly billing as the primary cause of either client or lawyer discontent. Most of the things wrong with hourly billing are related to its abuse or to obscenely high hourly quotas imposed on lawyers by firms. We’ve pointed out, therefore, that nothing much will change if lawyers switch billing methods but insist on making just as much money. We’ve argued that each fee mechanism comes with its own anti-client incentives, noting that lawyers have found ways to manipulate every kind of billing scheme to produce fees that clients rightly consider to be excessive. [E.g., see our 2005 "chronomentrophobia" posting; and “broadening the hourly-billing debate,” Aug. 18, 2007, which includes excerpts from many prior posts; and see our 4-part essay on contingency fees.]

In response, we’ve gotten virtually no support among the profession, but plenty of ridicule and distortion from those who would like to kill hourly billing — often in order to make even more money. We’ve wondered when legal ethics experts and others with no financial stake would address this vital topic. Thanks to a chance stop at the Legal Ethics Forum this week, I finally discovered a few other thoughtful folks who are unwilling to join the hourly-billing lynch mob and blindly embrace all forms of alternative billing as problem-free solutions. It was no surprise at all, given our experience, that one of them was a Canadian law professor.

After seeing a much-emailed article in the New York Times about the waning billable hour, U. Calgary legal ethics professor Alice Woolley wrote “Demise of the billable hour again?” (Feb. 2, 2009). In that post, she points to the kinds of issues we’ve been talking about at length. Using larger words than our Prof. Yabut, Prof. Woolley says (emphasis added):

“I wonder about the fixation with the billable hour as a measure of lawyer’s value. While it has its obvious drawbacks, all billing methods are susceptible to the extraction of rents given the imperfections in the market for legal services. Moreover, lawyers moved to the billable hour for good reasons (more efficient allocation of risk) as well as more dubious ones (accounting firm indications that this would correct the lag in lawyers’ earnings). Why isn’t there more critical discussion of this?

Value-pricing pitchman Christopher Marston [Esq] responds to this call for more analysis with his usual blanket condemnation of hourly billing and refusal to admit there are any problems with fixed and value billing. In a comment, Marston says the profession should just kill the billable hour and “stop talking about it.” He offers this typical analysis:

“[people like himself] get that there is not a single customer that wants to buy an increment of our time. Increments are excrement.”

In her reply to Marston, Prof. Woolley notes that the history of the shift to hourly billing is unclear. As to the economics, however, she states:

“[W]hile economists may dispute the merits of time as an economic measure, it is not obvious what measure works given the inherent non-homogeneity of the ‘product’ lawyers sell. If I go to lawyer A for task B, and to lawyer B, for task C, what meaningful measure do I have to compare the ‘price’ charged by two different lawyers – whose skills may vary widely – for two different tasks – the inherent ‘value’ of which may vary widely . . . .”

“Further, if you use measures such as ‘value’ or ‘task’ payment, you still have the problem of information asymmetry, the credence good problem and the issue that, even ex post, it is not always clear whether the value received by a client arose from the skill of the lawyer or other factors – getting a good judge, having a case which even an incompetent fool couldn’t lose (or conversely, having a terrible judge).

In other comments to Prof. Woolley’s post, we are pointed to three recent blawg postings that deal thoughtfully with the hourly billing debate.

In “what’s the problem with the billable hour?” (Jan. 14, 2009), Lance Godard wrote that “in spite of all of its warts, [hourly billing] is still a pretty efficient way to compensate lawyers for their work.” He continues with insight and candor:

“Isn’t the real problem one of value, trust and service? When clients say they are unhappy with the billable hour method, aren’t they saying they feel like they’re paying too much for their legal services? That the perceived value of those services does not equal the cost they’ve been asked to pay? Legal services have to be paid for, and by-the-hour is a reasonable way to do it until you think your lawyer spends unnecessary time on your matter, or charges too much for her time, or isn’t telling you the truth when she says it will take 20 hours to resolve your problem. And if that’s the case, then the billable hour isn’t to blame.”

“Of course there are lawyers who pad their hours, who focus on the doing rather than on the result, who work day and night in the relentless pursuit of 2400 hours/year of client work. . . .

“But do you think those lawyers are going to go away or stop overcharging clients or stop wasting their clients’ money when the profession moves away from the billable hour? That the new billing methods will be completely transparent, that cost will reflect value, that no client will ever again wonder if she got her money’s worth? Who are we trying to fool? . . . The way the compensation is calculated changes nothing. If we believe that clients will get better legal advice, make better business decisions and be happier once the billable hour has been eradicated, we’re fooling ourselves.

“The billable hour isn’t the problem. It’s just a smokescreen. The problem is that clients no longer believe they are getting value from their lawyers. How are we going to fix that?”

“The real question is whether, overall, the total price approximated by billable hours is an acceptable surrogate for the value to the client. Bill [Henderson, his co-blawger] is free to chime in with hard evidence, but my intuition as a former buyer and seller is that the overall acceptability of the surrogate is indeed revealed by the overwhelming instance of its use in the market.”

After saying, “There’s no question that alternative fee arrangements work around the edges,” he poses “an example of a real problem” – companies looking for a way to make their pension plan obligations more determinate, but without going to defined contribution plans. Jeff explains and continues:

” The first prong of my thesis is that this is precisely the kind of mixed law and business problem on which law firms assist clients all the time, and it’s really difficult for either side to price the assignment by any method other than the billable hour. . . .

“The second prong of my thesis is that it’s not clients who hate billable hours, but the lawyers themselves. . . . I don’t think it has anything to do with billable hours per se, but with the fact that being an outside lawyer is a tough and exhausting profession (one that usually happens to pay pretty well) very often entered into by smart people with lots of fungible smarts, but without any particular passion for what they are doing. (Hence, the fact that well-paid lawyers are among the most prolific whiners in the charted universe!) The problem isn’t the billable hour, but the fact that the lawyer is only slightly more vested in the outcome or the business (other than by fear of failure) than the typical assembly line worker is in the car.”

“A truly radical approach to the practice would recognize that lawyers in big firms might well have more passion around the firm as a business if they had a meaningful stake in it as owners.”

I don’t know how to solve the malaise of so many lawyers. Merely switching to another billing mechanism is surely only the answer for a relatively few lawyers — and even fewer clients.

It is great to see thoughtful, knowledgeable people (with no apparent financial or emotional stake in the hourly-alternative billing debate) talking about these issues. I want to again urge legal ethics professionals to delve deeply into a lawyer’s ethical and fiduciary duties to the client when choosing and implementing various methods of billing for their services. Lawyers need more guidance on just what “reasonable fee” means. Scholarly articles, empirical studies, practice guides, continuing ed materials, and classroom discussion are all needed — along with more extensive blawging.

Finally, I’m going to leave you with excerpts from our post “time, fees, flu, pumpkins, too” (October 10, 2007), which summarizes many notions we’ve raised that are similar to those discussed by Prof. Woolley. The post starts by thanking the only other blawger I know who has been willing to talk back to (rather than merely echoing or parroting) the anything-but-hourly crowd over the past few years, Carolyn Elefant:

Thankfully, Carolyn Elefant again tries to focus on the most important issue: What do clients want and how do we best serve their interests? . . . Carolyn asks:

“If value billing benefits clients, then why do we lawyers need to sell them on it? Have clients become so entrenched in the billable-hour concept that they don’t realize that there’s a better way? Or is value billing another way for firms to charge more for the kind of value that as lawyers we’re obligated to provide anyway?”

We continued “time, fees, flu, pumpkins, too” by pointing out “a few important ideas for the law firm or law client to keep in mind, when thinking about the pros and cons of hourly billing and alternatives such as flat fee or value billing.”

Billing by the hour does raise the issue of law firms doing too much (being inefficient) because they earn more by doing more, but pricing in advance through a flat fee inherently creates the potential of doing too little for the client, since more effort won’t earn more money and less effort won’t (immediately, at least) reduce the size of a bill.

A too-busy lawyer or law firm (and the best almost always are too busy) has no particular incentive to do unnecessary work for a client when billing by the hour; but, a too busy lawyer has plenty of incentive to do less for a client when a fee is fixed in advance.

When an hourly-billing lawyer does extra (”too much” or perhaps “unnecessary”) work for a client, the result is often a better-written pleading or contract, or a better understanding of precedent; when a flat-fee-billing lawyer does “too little” (cutting corners or eliminating tasks), the result is very likely to be lower quality work product and possible injury to the client’s interests.

As always, it is important to distinguish condemnation of high billable hour quotas for each attorney, which are set by law firms, and which raise many ethical red flags, from billing by the hour, which is not inherently unethical. And,

What might be good or fair for savvy clients, who have lots of experience with lawyers and legal problems and offer the potential for significant repeat business, may not be automatically fair for clients who have little relevant experience and, therefore, may have no real idea how much work is required, what a reasonable fee would be, how difficult or unusual their situation is, nor how qualified a law firm is to handle the matter. In many situations, they also won’t be better able to judge the quality or value of the services even when they are completed.

One tip for prospective clients: If a flat-fee or value-billing lawyer, who wants to be hired by you, is only telling you the good things about alternatives to hourly billing, and only the bad things about paying by the hour, you should think long and hard about whether you are dealing with a trustworthy lawyer who puts your interests first. If he or she won’t give you an estimate of how much actual lawyer time will be put into your matter, run.

The economics, ethics and practicalities of billing for lawyer services should never be seen as yes-or-no propositions. Far too much depends on the factual circumstances and on the traits of the people involved (lawyer and client). By constantly attacking and deriding anyone who points out that there are pros and cons to every billing method, those with a stake in killing the billable hour are trying to create a forced binary choice — one that is likely to hurt those with the least power in the marketplace for legal services: the unsophisticated (or un-wealthy) client and the inexperienced and easily-replaced young attorney.

.. Haiku legend Alexis Rotella has uncorked her first distillation of Prune Juice: Journal of Senryu and Kyoka (Issue 1, Winter 2009), which she describes as a biannual print and digital journal “dedicated to publishing and promoting fine senryu and kyoka in English.” Issue 1 offers more than 130 poems by about four dozen haijin, many of them very well-known for their well-crafted poems and wry insight into human nature.

Senryu are structured like haiku, and kyoda like tanka, but their focus is different. As Alexis explains:

“Senryu generally emphasize human foibles and frailties, usually satirically, ironically, humorously. Season words are not necessary nor usual in senryu. Kyoka have a different history than senryu; nevertheless, for modern kyoka in English, the definition is similar: a poem in the tanka form but with the satirical, ironic, humorous aspects of senryu.a poem in the tanka form but with the satirical, ironic, humorous aspects of senryu.”

Agreeing with the bumper sticker from StickEm2/CafePress, Alexis tells us that senyru “is an outlet, a therapy of sorts.” She wants poets and readers to use senryu and kyoka to help reveal and share their real emotions, saying in her introduction to Issue I:

“I hope this issue inspires you to step up, to come and mingle with the rest of us—to make a toast with a glass of prune juice in honor of the plum blossoms who, without that delicious metaphorical elixir that gets things moving, would not exist. And if you are one who hides behind a potted plant, come out come out whoever you are.”

Alexis seeks to publish senryu and kyoka that range from “gently humorous to the most wicked satire” — and advises that “Our tastes run towards the wicked end of the scale.”

Frankly, the curmudgeons in the f/k/a Gang like to sip, rather than swig, senryu. And, we’re a little wary (maybe even weary) of editors and poets trying to give us shocking or “wicked” poems. So, we plan to decant our Prune Juice a little at a time. With Alexis Rotella at the helm, however, we’re pretty sure a lot of readers will be filling their cup to the brim with Prune Juice, and asking for refills.

p.s. Seven-Day Countdown: Speaking of feeling our emotions, getting things moving and setting ourselves free, the f/k/a Gang plans to stop adding to this weblog as of March 1, 2009. It will remain online, with thousands of haiku and senryu, and a lot of law-related and cultural punditry. But, the last f/k/a posting will roll off your Editor’s fingers no later than Feb. 28, 2009. We’ll try to write a few more posts related to lawyer fees before we hang up our blawger sword; then we’ll be looking for something more enjoyable and less stressful to do online. Naturally, we’ll have a little more to say when we sign off at the end of this week.

afterwords: Many thanks to Scott Greenfield at Simply Justice for his kindly post reacting to my announcement that f/k/a is closing down production. See “Phoenix Rising” (Feb. 24, 2009)

“As easily imagined and as was already noted by the Legislature, these ‘not in my backyard’ local residency restrictions create great difficulties for the Division of Parole, local probation and social service agencies to locate appropriate housing for sex offenders.”

The Times Union notes:

“The conflicting decisions from the same court could send mixed messages to city police.

“Attorney Terence Kindlon, whose firm is suing the county pro bono, said he believes it would be ‘more intelligent than not to refrain from prosecuting these cases’.”

” . . . Detective James Miller, a spokesman for the Albany Department of Public Safety, said officers in the city will keep making arrests.

As the Times Union Politics Blog noted yesterday evening, “Amid all this, state Supreme Court Justice Roger McDonough is still considering a constitutional challenge to county law nearly identical to the one made in Rockland.” Justice McDonough has a summary judgment motion before him in the suit mentioned above brought by Terence Kindlon.

It’s clear that we need statewide action on sex offenders. However, we also need politicians who will have the courage to oppose counterproductive and ineffective residency bans — like the fear-mongering S.01300, proposed by Senate Majority Leader Malcolm A. Smith — that prevent whole classes of sex offenders from living in most populated areas, rather than allowing professionals to locate housing most appropriate for each individual sex offender. See our prior post “don’t let a bad idea go statewide” (Feb. 2, 2009). If courage is lacking, perhaps politically-motivated leaders from rural areas of the state will rise up against S.01300, which will force many sex offenders to live in less-populated areas.

Teaser: Schenectady Police Officer Dwayne Johnson made three times his base pay last year, while averaging 75 hours a week on the clock (making him, at $168,000, the highest paid employee in Schenectady’s history). However, after several late-night stakeouts, Schenectady Gazette reporter Kathleen Moore reported yesterday that Officer Johnson has been parking his car outside a local apartment that is not his home for a few hours every Tuesday night since November, during his patrol shift. Despite being tracked by a GPS monitor in his unit, no supervisor caught the apparent dereliction of duty. See “Chief: Cop ‘stealing time’: Johnson, tops in pay, out of car during shift” (by Kathleen Moore, Feb. 18, 2009).

Responding to the question from Schenectady Police Chief Mark Chaires, “how dumb can you get?”, Scott points out that “neither Chief Chaires nor anybody else on the force thinks that somebody ought to take the occasional gander at their top earner, the big money man, to make sure they are getting their money’s worth?” Scott then muses: “How dumb? Not as dumb as you, Chief.”

update (Feb. 20, 2009): The Gazette tells us this morning that Officer Johnson was “suspended without pay Thursday while the department investigates the extent of his absences during his overnight patrols.” He apparently will have to be paid if kept on suspension longer than 30 days. “Absent officer out for month: Bennett begins cop AWOL probe; union issues cited” (Feb. 20, 2009). I’m surprised that Public Safety Commissioner Wayne Bennett believes “it will take well over a month to finish the investigation into Johnson’s absences. Also under review are the supervisors who did not notice them and the officers who may have tipped him off when internal affairs attempted to catch him in the act early last Tuesday.” I’m not surprised that he expects the police union to argue napping has become a “past practice,” approved regularly by lower-level supervisors, that cannot be changed without union approval.

The Gazette notes that “Some officers, who spoke anonymously, say everyone who works long shifts takes naps, beginning at lunchtime. They argued that an unspoken rule in the department allows napping to continue after lunch as long as police get up as soon as they get a call.” Bennett says: “If someone had the absolute and unmitigated gall to call [napping] a past practice, well, supervisors do not have that kind of authority to authorize that.”

In his update this morning at Simple Justice, Scott Greenfield trumpets “The new frontier for police contracts: Napping Clauses.”

Officer Johnson is 49 years old and apparently considers a double shift to be his regular work day. The f/k/a Gang understands the need to nap (although, altogether, we alter egos aren’t working 75 hours a week), but we agree with the Gazette that if the conduct is proven, Officer Johnson should be fired. At the very least, some major auditing of his time records is needed, plus more scrutiny of his so-called supervisors.

Undercover? Lawyer Greenfield concludes: “But don’t fear that Johnson will go unpunished. My bet is that his wife will have a few questions about what he was doing in that apartment every Tuesday morning.”

We don’t get paid overtime (nor anytime) here at f/k/a, but we’re always workin’ hard trying to bring you some of the best haiku around. As promised yesterday, here are poems written by a few of our Honored Guest Poets that were selected for the newest issue of Frogpond [Vol. 32:1, Winter 2009]. We’ll have another batch later this week.

p.s. Speaking of criminal justice in Schenectady, the print version of the Daily Gazette has an article on p. B3 titled “Imposter [sic] suspect in Regents exam faces lesser charge” (Feb. 19, 2009). In it we learn that District Attorney Robert Carney won’t be charging Deandre M. Ellis with burglary [illegally entering a building intending to commit another crime] for entering a Schenectady school to take a Regents exam in disguise for another student. We were doubtful of the arresting officers’ legal reasoning in a post on Jan. 29, 2009 (scroll to second story). Instead, Ellis is being charged with misdemeanor criminal impersonation, which he denied at his arraignment yesterday. DA Carney explains that “There has to be some sort of notice or communication to [a] person that ‘you’re not welcome’ to convert [entering a public building like a school] to a trespass,” on which to hang a burglary count. According to the Gazette:

“But Carney likened the case to a shoplifter. Anyone is allowed in a store, until they’re asked to leave. But a shoplifter isn’t charged with burglary, Carney said, even though they may have entered with the intent to steal.”

Tonsorial-forensic experts should note a mystery raised in the case: Ellis wore a wig when posing as a female student in January. As you can see above, he has short spiky hair in his mug shot. But, three weeks later, he appeared in court with “long hair, past his shoulders.” Neither Ellis nor his public defender were willing to comment on the issue. Could it be Ellis will claim he always goes around in the long wig and therefore was not trying to impersonate the female student?

http://blogs.law.harvard.edu/ethicalesq/2009/02/19/officer-johnsons-undercover-operation/feed/0frogpond brings HSA winnershttp://blogs.law.harvard.edu/ethicalesq/2009/02/18/frogpond-brings-hsa-winners/
http://blogs.law.harvard.edu/ethicalesq/2009/02/18/frogpond-brings-hsa-winners/#commentsThu, 19 Feb 2009 00:22:22 +0000http://blogs.law.harvard.edu/ethicalesq/?p=10626 .. The newest issue of Frogpond [Vol. 32:1, Winter 2009], the journal of the Haiku Society of America, arrived at my door this snowy February afternoon. Frogpond always has a lot of winning haiku, but this issue also announces the winners of HSA’s most prestigious annual contests: The 2008 Kanterman Merit Book Awards for best published books in 2007; the 2008 Henderson Award for best haiku; and the 2008 Brady Award for best senryu.

As usual, several of f/k/a‘s Honored Guest Poets have been honored this year.

John Stevenson received 1st and 3rd place awards in the Harold G. Henderson Haiku Contest for 2008:

Thanksgiving–
fifteen minutes
of mince pie

[1st Place, 2008 Henderson Contest]

butterfly
my attention
attention span

[3rd Place, 2008 Henderson Contest]

Michael Dylan Welch won 2nd Place in the Gerald Brady Memorial Contest for 2008, with this senryu:

The Best Anthology award went to Jim Kacian’s Big Sky – The Red Moon Anthology of English-Language Haiku 2006 (Red Moon Press 2007; find sample poems at the bottom of this prior post)

The Best Haibun award went to “Dr. Bill” w.f. owen for his book small events (Red Moon Press 2007)

.. In the very near future, we’ll share poems from the Winter 2009 issue of Frogpond written by our Honored Guests (update: go here and there). Below the fold, you will find a list of all the winners from the three contests described above (soon, you will be able to find all the winning poems and the comments of the judges by clicking on the link for each contest at the HSA Haiku Contests page):

Mildred Kanterman Memorial Book Awards for 2008 (judged by George G. Dorsty and Marie Summers):

First Place: Desert Hours by Marian Olson (LIly Pool Press 2007)

Second Place: The Whole Body Singing by Quendryth Young (self-published)